The Elementary and Secondary School Emergency Relief Fund (ESSER) is a federally funded emergency relief program that offers urgently needed assistance to the majority of America’s nonprofit private schools. Despite the statutory references to Title I of the Elementary and Secondary Education Act, accompanying guidance makes it clear that this is not a Title I program (see below). Funds can be used for a wide array of purposes far exceeding those of any existing federally funded program. There is no “supplement not supplant” restriction, and participating schools will not be deemed “recipients of federal financial assistance.” Here’s what your private school needs to know about ESSER. (Posted 5/4/2020. Please revisit this page, periodically, to check for updates.)
On July 1, 2020, the U.S. Department of Education published an interim final rule (IFR) that carries the full force and effect of law, and whose provisions supersede those appearing in the USDE’s April 30 guidance relative to the CARES Act’s equitable services provisions. The IFR departs from the April 30 guidance by granting local education agencies (i.e., public school districts, or, “LEAs”) the flexibility to use one of two methods of calculating the amount of funds to be set aside for the provision of equitable services to private school pupils and educators under either the Elementary and Secondary School Emergency Relief (ESSER) Fund, or the Governor’s Emergency Education Relief (GEER) fund programs. A USDE news release announcing the forthcoming publication of the IFR describes the change, as follows:
Under the rule, if an LEA chooses to use CARES Act funding for students in all its public schools, it still must calculate the funds for equitable services based on students enrolled in private schools in the district. However, if an LEA chooses to use CARES Act funding only for students in its Title I schools, it has two options:
Calculate the funds for equitable services based on the total number of low-income students in Title I and participating private schools; or
Calculate the funds using the LEA’s Title I, Part A share from the 2019-2020 school year.
The USDE’s April 30 guidance made no allowance for employing a Title I approach to determine funding levels for the provision of equitable services. The new flexibility established by the IFR means that LEAs with very high percentages of Title I schools may decide to restrict ESSER and/or GEER funding to those schools and substitute a poverty-count basis for calculating funding for equitable services in lieu of the total proportionate enrollment method outlined in the guidance.
The July 1 publication of the IFR in the Federal Register triggered the opening of public comment period that will extend for a period of 30 days (ending on July 31). Following the close of this period, the USDE will review all comments received and may then release a final amended rule.
Because the IFR possesses the weight of law and is now in effect, private school officials should call upon their LEA contacts to explain which method of calculating equitable services funding levels the LEA has decided to employ with respect to both ESSER and GEER funds.
UPDATE (6/8/2020 and 7/6/2020)
On June 5, the California Department of Education published a document titled, “ESSER Fund Frequently Asked Questions.” The Department’s disposition toward ESSER Fund equitable services for private school pupils and educators appears in the following item:
10. Are there any differences between the way in which funds are allocated to equitable services under Title I, Part A, versus under the ESSER Fund?
Under Title I, Part A of ESEA, LEAs determine the amount of funding to provide equitable services by a count of qualifying low-income students enrolled in non-public schools, This interpretation furthers the goal of Title I which is to provide services to low-income students. However, ED has provided guidance (ED Equitable Services Guidance) that the amount is to be a proportional share based on the percentage that the total number of students, regardless of income, enrolled in participating non-public schools bears to the total number of students enrolled in public and non-public schools. This will likely result, in most cases, in a much higher amount being allocated to private schools for equitable services under ESSER than under ESEA, Title I, Part A.
ED’s interpretation is controversial. The CDE agrees with a number of States, advocacy organizations and other interested parties that ED’s interpretation is incorrect and that Congress intended the amount of money allocated to equitable services to be calculated in accordance with the existing Title I, Part A, formula, i.e., based on identifying the number of qualifying low-income students.
However, the Secretary of Education, in a letter dated May 22, 2020, responding to the Council of Chief State School Officers, affirmed ED’s position in the guidance. The Secretary indicated that ED would be issuing a rule on the topic and inviting public comment in the near future. In the meantime, ED’s guidance “will remain in effect and inform ED’s enforcement of the CARES Act.” (See below.) The Secretary suggested that LEAs not following ED’s guidance “should, at minimum, put into an escrow account the difference between the amount generated by the proportional-student enrollment formula and the Title I, Part A, formula.”
It is CDE’s opinion that Congress intended that the funds be allocated consistent with the Title I formula. Members of Congress have indicated that they will be seeking legislation to clarify that intent. CDE and the Newsom Administration will work with members of Congress to advocate for that clarification.
CAPSO is disappointed with the CDE’s view, and dismayed to learn that state leaders will take action to persuade members of Congress that the most appropriate manner of providing assistance to private schools at a time of unprecedented economic crisis is to expand a compensatory education program designed to benefit a relative handful of students. Note, however, that CDE has invited each LEA to make its own determination regarding how it chooses to implement the equitable services provisions in question. The interim final rule published by the USDE on July 1, 2020 now provides LEAs with such flexibility (see 7/6/2020 update, above).
UPDATE (5/20/2020 and 7/6/2020):
We now know that federal CARES Act funds, including ESSER, have been made subject to the enactment of California’s budget, which must be accomplished prior to July 1. The practical upshot is that LEAs (i.e., public school districts) will likely be unable to submit their applications for ESSER funding until early July.
Public education special interest groups have pushed back, strongly, against the April 30, 2020 CARES Act equitable services guidance issued by the U.S. Department of Education. At present, some states have accepted the guidance, some have ignored it, and others have yet to make their intentions known. California falls into this last category. Correspondence received from the California Department of Education on May 18, 2020, included the following information:
We understand that there is ambiguity in the law regarding the CARES Act and Equitable Services. The CDE is reviewing U.S. Department of Education’s current guidance and the CARES Act to determine what the effects will be for California.
The CDE will publish more information in the coming weeks on the Equitable Services Frequently Asked Questions Page, which is located at: https://www.cde.ca.gov/sp/sw/t1/equitableservicesfaqs.asp
We note that the web page upon which the forthcoming information is to appear is specific to Title I.
Administrators of California nonprofit private schools located in public school districts that can be expected to receive ESSER funds (see article below) should continue to indicate the intention of their schools to participate in both Elementary and Secondary Education Emergency Relief Fund (ESSER) and Governor’s Emergency Education Relief Fund (GEER) equitable services programs. Administrators should familiarize themselves with the April 30 guidance (see below), and are advised to exercise due diligence before agreeing to any policy that deviates from the guidance. Please see the 7/6/2020 update (above), concerning the USDE’s issuance of an interim final rule whose provisions supersede those of the Department’s April 30 guidance.
What is “ESSER?”
ESSER is the popular nickname given to the Elementary and Secondary School Emergency Relief Fund. It is one of three major programs comprising the Education Stabilization Fund component of the Coronovirus Aid, Relief, and Economic Security Act, commonly known as the “CARES Act.”
- CARES Act Section 18002: Governor’s Emergency Education Relief Fund (GEER) – Total Funding: $2,953,230,000
- CARES Act Section 18003: Elementary and Secondary School Emergency Relief Fund (ESSER) – Total Funding: $13,229,265,000
- CARES Act Section 18004: Higher Education Emergency Relief Fund (HEERF) – Total Funding: $14,000,000
Where does the money go?
ESSER funding flows from the U.S. Department of Treasury to the U.S. Department of Education. After a state submits a simple application and obtains approval from the USDE – a process the Department has promised to complete within three days – dollars will be apportioned to individual states on the basis of a formula that is weighted for the prevalence of poverty. In California, the funds will be received by the California Department of Education (CDE). Because California has a higher prevalence of poverty, it will receive a proportionately greater share of ESSER funds, an amount that comes to approximately $1.6 billion. The law requires no less than 90 percent of the ESSER funding received by a state to be passed along to local educational agencies. (In this article, the terms ‘local educational agency’, ‘LEA’, and ‘public school district’ are used interchangeably.)
The ESSER funds to be allocated by the state to the respective LEAs are to be apportioned in the same manner as was used to allocate federal Title I funds in the most recent fiscal year. (Title I refers to a major component of the federal Elementary and Secondary Education Act of 1965, which is currently known as the “Every Student Succeeds Act,” or “ESSA.”) Public school districts that received no Title I funds will not be eligible for receipt of ESSER funds. If your private school is located within one of these districts, it will not be eligible to receive ESSER benefits. (See sidebar.) The majority of California’s nonprofit private schools will, however, be eligible to receive services funded through ESSER.
This CDE spreadsheet displays an LEA’s Title I funding status for the current year, with LEAs are clustered by county. Scroll down until you see the county in which your private school is located appear in the “County Name” column, and then find the public school district in which your school is located in the “Local Educational Agency” column. Once you’ve found the relevant LEA, scroll across to the “2019-20 Revised Allocation Amount” column. If a non-zero amount appears, the LEA will be eligible to receive ESSER funding, and your private school will be eligible to receive ESSER benefits.
The law requires LEAs, or other public agencies to retain control of funds and title to any materials, equipment and/or property purchased with ESSER funds. Participating private schools never receive funds, but receive services, either directly from the LEA or from a third-party provider. The nature of the services provided (which will be explained below) and the question of who provides them are issues to be determined through a process of consultation between LEA and private school officials. Because private schools that choose to participate in ESSER will not receive direct funding, they will not be considered “recipients of federal financial assistance.”
A nonprofit private school providing instruction in any of grades K-12, inclusive, is eligible to receive ESSER benefits if it is located within an LEA receiving ESSER funding. In the CARES Act, private schools are referred to as “non-public” schools. The statute defines a “non-public” school as: “a non-public elementary or secondary school that (A) is accredited, licensed, or otherwise operates in accordance with State law; and (B) was in existence prior to the date of the qualifying emergency for which grants are awarded under this section;”.
An LEA is responsible for initiating consultation with all nonprofit private schools located within its boundaries, and must contact officials at all such schools to notify them of the opportunity to receive equitable services funded with ESSER dollars. At the outset of consultation, LEA staff should explain how much money is available to provide services, and what manner of services are permissible. Working as a team, LEA staff and private school officials should determine the nature of services to be provided, by whom the services will be provided, and how and when they will be provided.
Consultation is to take place during the design and development of the LEA’s ESSER programs and before the LEA makes any decision that affects the opportunity of private school students and teachers to participate in the activities funded under the CARES Act programs. Please note that LEAs cannot simply require private schools to participate in the ESSER programs and services the district will create to serve public school students. Equitable services provided via ESSER should meet the particular needs of a participating private school, its students and educators.
The CARES Act
Enacted by Congress on March 27, 2020, and signed by President Donald Trump on the same day, the federal CARES Act is a massive, emergency assistance appropriations bill intended to provide relief from the economic challenges occasioned by the COVID-19 pandemic. Funded at a staggering $2 trillion, it is the largest economic stimulus bill in the nation’s history, dwarfing the $831 billion American Recovery and Reinvestment Act of 2009.
You can view the text of the CARES Act, here. The statutory language establishing the Education Stabilization Fund begins with Section 18001, which can be found on page 284. The provisions establishing ESSER are contained in Section 18003, beginning on page 285.
Some LEAs May Not Be Eligible for Receipt of ESSER Funding
Based on data provided by the California Department of Education, we’ve compiled a list of LEAs that will not be eligible to receive ESSER funding. We’ve also created a list of LEAs whose ESSER status is questionable. If the LEA in which your private school is located appears on the “questionable” list, you’ll want to contact the district office, ask to speak with the individual responsible for federal programs, and check to see whether that person expects the district to receive ESSER funding. Please note that a number of the entries appearing on these lists are charter schools. (Some charter schools are regarded as LEAs.)
Consultation Tips: Getting Started
It is the obligation of the LEA to initiate consultation. That said, there’s no reason why a private school official can’t reach out to an appropriate colleague at the local public school district to indicate interest in learning more about ESSER, or expressing intention to participate. Building positive working relationships with district staff is always a good idea, so don’t hesitate to pick up the phone, call your district’s central office, and ask to speak with the person responsible for overseeing federally funded programs. If your school receives a letter, or other form of communication from the district asking for an indication of whether or not the school intends to participate in ESSER, be sure to respond affirmatively, and immediately. No private school is required to participate in ESSER, and your school may later decide not to participate, but no private school should foreclose the opportunity to derive benefit from the program before engaging in the process of consultation.
Agree, or Disagree?
Both parties should enter consultation with the goal of reaching agreement. An LEA must furnish the state with written affirmation signed by private school officials attesting that timely and meaningful consultation took place. Private school officials have a right to file a complaint with the California Department of Education if they belief equitable services are not being delivered. If the CDE determines that the LEA failed to meet applicable requirements, it must provide the equitable services directly, or through contracts if requested to do so by private school officials.
ESSER and Title I: What You Need to Know
The section of the CARES Act statute that establishes equitable services under ESSER contains some confusing language. The law says that an LEA receiving ESSER funding must provide equitable services to private school students and teachers “in the same manner as provided under section 1117 of the ESEA of 1965…” Section 1117 of the Elementary and Secondary Education Act is the program known as “Title I.”
Title I contains a number of unique features that make it different from other federal programs with private school equitable services provisions. Under Title I, equitable services funds are generated by a count of private school students residing within a Title I participation area whose families meet a poverty criterion. Receipt of Title I services is restricted to those students at greatest risk of academic failure. Most notably, Title I services are delivered by the LEA in which an eligible private school student resides, rather than the LEA in which that student’s private school is located.
The CARES Act established an economic recovery program designed to furnish emergency relief to individuals, businesses, agencies of government, and other entities, to ease the financial impact of the COVID-19 pandemic and keep the economy functioning. The purposes of the CARES Act and ESSER are, thus, quite different from that of Title I, which focuses on improving the academic achievement of a specific subset of students. The ambiguity invited by the statutory reference to Title I is resolved in a document titled, “Providing Equitable Services to Students and Teachers in Non-Public Schools Under the CARES Act Programs,” issued by the USDE on April 30, 2020.
Here are the document’s key sentences:
We have interpreted “in the same manner as under section 1117” in light of the significantly broader eligibility and uses of funds authorized under the CARES Act as compared to Title I, Part A, reasonably reconciling differences. In doing so, we gave meaning to section 1117(a)(3), which requires educational services and other benefits for students in non-public schools to be equitable in comparison to those for public school students.
On pages 3-5, the guidance document spells out how each of the particular features governing the provision of equitable services under Title I is to be reconciled with the underlying intent of the CARES Act. In some respects, similarities are maintained. Consultation between and LEA and private school officials must be timely and meaningful; both parties to consultation must have the goal of reaching agreement; all services provided under ESSER must be of a secular, neutral, and nonideological nature; funds must be obligated in the fiscal year for which the funds were received by an LEA; and the state ombudsman will be responsible for monitoring and enforcing ESSA’s equitable services provisions.
But there are a considerable number of essential differences of which both private school and LEA officials need to be aware:
- A private school is eligible to participate in ESSER regardless of whether it currently participates in Title I, or participated in Title I in the past;
- The amount of money to be made available for equitable services is not to be determined by a poverty count (see below);
- Services are to be provided by the LEA in which a private school is located;
- The scope of permissible services under ESSER is far more encompassing than under Title I; and,
- Services provided under ESSER may benefit a private school, itself.
How is Funding for Equitable Services Calculated?
(Please see the 7/6/2020 update – above – noting that the USDE’s publication of an interim final rule on 7/1/2020 establishes funding provisions that supersede those contained in the Department’s April 30, 2020 guidance, and which now carry the full force and effect of law.)
The guidance spells out the procedure by which LEAs are to calculate the proportional share of funding to be made available for the provision of equitable services under ESSER. The process is largely similar to that associated with Title II, Part A and Title IV, Part A of the Every Student Succeeds Act. The LEA first determines the number of students enrolled in public and private schools located within the LEA, that wish to participate in ESSER (and/or in the Governor’s Emergency Education Relief Fund program). The LEA than uses the number of private school students as a percentage of the total number of students (private plus public) in the LEA, and applies that percentage to the total ESSER allocation it receives from the state.
For example, say that the Friendly School District counts a total of 90,000 students in its public schools, and 10,000 students in its private schools. The number of private school students as a percentage of the total would be 10 percent (10,000/100,000 = .1). If the Friendly School District were to receive an ESSER allocation of $10 million, $9 million would be used to furnish benefits to the district’s public schools, and $1 million would be used to provide equitable services for the district’s private schools. After the LEA reserves a percentage of the equitable services “set-aside” funds for administration, the remaining sum is divided by the number of private school students in the district to calculate a per-pupil allocation. The amount of money available to provide services to each private school in an LEA will equal its total enrollment in grades K-12, inclusive multiplied by the per-pupil allocation.
It is important to note that private school students will generate funds only if their school has indicated its intent to participate. Every nonprofit private school should, therefore, provide early indication of its intent to participate in ESSER at the earliest possible opportunity.
Guidance also makes it clear that, subject to agreement with an LEA, a group of private schools (located within the LEA) may pool their individual allocations.
What is “Guidance?”
“Guidance” is a set of suggestions, often provided in the form of questions and answers, provided by an agency of government to explain what certain elements of a law mean and to furnish examples of how various aspects of the law are to be applied. You might thing of guidance as a “how to” guide to implementing a law, or one of its components.
The formal name for guidance is “non-regulatory guidance.” Why? Because, unlike regulations, guidance is issued without going through the formal rule making procedures – including public comment – to which proposed regulations are subject. As is noted in the guidance document accompanying the equitable services provisions of the CARES Act, “…the contents of the guidance do not have the force and effect of law and are not meant to bind the public in any way.”
That said, guidance is almost always accorded the weight of law in practice. Why? Because any formal complaint that finds its way to the agency with ultimate jurisdiction for the enforcement of the underlying law in question will almost certainly rule in a manner that is consistent with its own guidance.
How Can ESSER Funds Be Used?
As was previously mentioned, the permissible uses of ESSER funds are expansive. Of no lesser importance, ESSER funds may be used in ways that provide benefits to private schools (and not just to private school students and educators). Finally, unlike other federal education programs with equitable services provisions, the guidance makes it clear that, “the CARES Act does not have a supplement not supplant requirement.” What this last feature means is that ESSER funds can be used to offset regularly budgeted expenses.
Below are the permissible uses of ESSER funds, as they appear in the underlying statute:
(1) Any activity authorized by the ESEA of 1965, including the Native Hawaiian Education Act and the Alaska Native Educational Equity, Support, and Assistance Act (20 U.S.C. 6301 et seq.), the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) (‘‘IDEA’’), the Adult Education and Family Literacy Act (20 U.S.C. 1400 et seq.), the Carl D. Perkins Career and Technical Education Act of 2006 (20 U.S.C. 2301 et seq.) (‘‘the Perkins Act’’), or subtitle B of title VII of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq.).
(2) Coordination of preparedness and response efforts of local educational agencies with State, local, Tribal, and territorial public health departments, and other relevant agencies, to improve coordinated responses among such entities to prevent, prepare for, and respond to coronavirus.
(3) Providing principals and others school leaders with the resources necessary to address the needs of their individual schools.
(4) Activities to address the unique needs of low-income children or students, children with disabilities, English learners, racial and ethnic minorities, students experiencing homelessness, and foster care youth, including how outreach and service delivery will meet the needs of each population.
(5) Developing and implementing procedures and systems to improve the preparedness and response efforts of local educational agencies.
(6) Training and professional development for staff of the local educational agency on sanitation and minimizing the spread of infectious diseases.
(7) Purchasing supplies to sanitize and clean the facilities of a local educational agency, including buildings operated by such agency.
(8) Planning for and coordinating during long-term closures, including for how to provide meals to eligible students, how to provide technology for online learning to all students, how to provide guidance for carrying out requirements under the Individuals with Disabilities Education Act (20 U.S.C. 1401 et seq.) and how to ensure other educational services can continue to be provided consistent with all Federal, State, and local requirements.
(9) Purchasing educational technology (including hardware, software, and connectivity) for students who are served by the local educational agency that aids in regular and substantive educational interaction between students and their classroom instructors, including low-income students and students with disabilities, which may include assistive technology or adaptive equipment.
(10) Providing mental health services and supports.
(11) Planning and implementing activities related to summer learning and supplemental after-school programs, including providing classroom instruction or online learning during the summer months and addressing the needs of low-income students, students with disabilities, English learners, migrant students, students experiencing homelessness, and children in foster care.
(12) Other activities that are necessary to maintain the operation of and continuity of services in local educational agencies and continuing to employ existing staff of the local educational agency.